"Why should we as Texas want to be reminded of a legalized system of involuntary servitude, dehumanization, rape, mass murder?"

Said a state senator at a hearing over a specialty license plate proposed by the Sons of Confederate Veterans:



The plate was rejected, and today, the U.S. Supreme Court hears argument on whether that rejection violated the First Amendment.

"The plaintiffs have every right to festoon their cars with bumper stickers or other images that display the Confederate battle flag," says former Texas Solicitor General Jonathan Mitchell. "But they can't compel the state of Texas to propagate the Confederate battle flag by displaying it on state-issued license plates."

The Sons of Confederate Veterans reply that Texas, by statute, has a policy of honoring their forebears. Specifically, there is a state holiday honoring Confederate veterans. "The lawyers working on this case get Confederate Heroes Day off," says R. James George, Jr., the lawyer representing the Confederate veterans group....

Beyond that, George contends that the Constitution does not allow the government to ban certain speech simply because it's offensive. That's a proposition that former Texas Solicitor General Mitchell rejects when the speaker is the state.

Lyle Denniston explains the procedure in Texas, which empowers a state board to reject plates proposed by non-profit groups if the message "might be offensive to any member of the public." Obviously, the proposed image offends some members of the public. The key constitutional law case seems to be Pleasant Grove City v. Summum, which allowed the government to refuse to include a donated monument in a park that had other donated monuments. (The rejected monument expressed religious beliefs and the park already had a 10 Commandments monument.) There's also a license plate case:

In the famous decision in 1977 in Wooley v. Maynard, the Supreme Court treated license plate messages as a form of private speech on private property, but did not rule exactly that.  Presuming it to be private speech, the Court said motorists could not be compelled to carry New Hampshire’s preferred message, the state motto, “Live Free or Die.”  That mandate was challenged by a driver of the Jehovah’s Witness faith.

The Supreme Court is hearing the case that arose out of Texas, but there is a second case out there, from North Carolina, where the state — which has a pro-life specialty plate — rejected a pro-choice plate.

As the [Texas] agency in sole charge of the program, the filing went on, the state agency has authority to disassociate itself from messages, symbols or viewpoints that it does not want to convey or promote.  It could not be compelled by the First Amendment, the agency said by way of illustration, to allow a swastika, a sacrilege, or an expression of overt racism, because that would have the state’s imprimatur and make it the state’s own message.  Indeed, it argued, motorists want expressions on their license plates precisely because that gives their message the state’s “seal of approval.”

The state has an interest, but it could be met by not having a specialty license plate program at all. I'm saying that even though I like states making money from something that people seem to enjoy buying.

In arguing that it did not engage in viewpoint bias by rejecting the Confederate flag display, the state agency contended that it would have done so only if had chosen to issue a specialty plate with the contradictory message of denouncing or demeaning the Confederacy or the Sons of Confederate Veterans.  It simply has taken no position on such expression, it contended.

The brief on the merits of the Texas chapter of the Sons of Confederate Veterans... dwelled primarily upon the argument that specialty license plates — when opened by a state to message choices by drivers — do nothing more than express private views or tastes.

Relying on an expansive reading of the Court’s precedent in Wooley v. Maynard, the organization essentially contended that the Court has already settled the debate over whose message license plates express.  When the government wants to convey its own messages, the brief said, it creates more enduring expressions like public monuments, not the mobile platform of an auto or truck.

I'd say there's a big difference between the state's slapping a message on your car and forcing you to drive around with it everywhere and and the state's denying you the option to get a message you like connected to the state's approval.